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Six months ago, the 2nd U.S. Circuit Court of Appeals issued a decision that sent shudders through New York’s appellate courts. In a habeas corpus petition involving a man convicted of raping his young daughter, the judges held on Jan. 5 that the Antiterrorism and Effective Death Penalty Act of 1996, which mandates broad deference to a state court’s denial of a federal constitutional claim, does not apply unless the state court essentially addresses in chapter and verse the various federal claims it is rejecting. New York appellate judges viewed the decision as one imposing an enormous new burden on their courts, since the vast majority of convicts raise, in some form, something that could be construed as a federal constitutional claim. Under Washington v. Schriver, 00-2195, the state judges were apparently required to undertake a thorough federal analysis in approximately 75 percent of the appeals they decided — an onerous new mandate. In an unusual 35-page amended version of its Jan. 5 opinion, the 2nd Circuit on Friday backpedaled and gave the state courts something of a reprieve. But in doing so, it seemingly left the state courts in limbo as to their responsibilities and, in the words of a concurring judge, did the “state courts no favor by declining to determine, as soon as possible” a question that may ultimately impose upon them a “heavy, and sometimes unwanted and unmanageable, burden.” Both versions of Washington v. Schriver arise out of a Bronx case involving a defendant convicted of subjecting his young daughter to a variety of sexual abuses, and the applicability of the controversial Anti-terrorism and Effective Death Penalty Act (AEDPA). Jeffrey Washington was accused of raping and sodomizing his then-5-year-old daughter over the weekend of April 13-14, 1991. At trial, he did not deny that the girl had been abused, but claimed that she had been raped by someone else and then coached by her mother and perhaps grandmother to implicate him. At trial, counsel for Washington sought to introduce testimony on the vulnerability of children to suggestibility. The trial judge refused to allow the testimony, and Washington was convicted of first-degree rape, first-degree sodomy and first-degree sexual abuse. Washington is serving concurrent terms of 6 to 18 years on the rape and sodomy and 2-1/3 to 7 years on the sexual abuse. On appeal to New York’s Appellate Division, 1st Department, Washington raised a number of issues related to the exclusion of the expert testimony, including claims under the due process clause of the Fourteenth Amendment and the compulsory process clause of the Sixth Amendment. The 1st Department affirmed the conviction (238 AD2d 263, 1997) without specifically addressing the federal claims, and the New York Court of Appeals denied leave, resulting in the filing of a federal writ of habeas corpus. Federal Judge Naomi Reice Buchwald of the U.S. District Court for the Southern District of New York denied the petition, and Washington appealed to the 2nd Circuit. FEDERAL ISSUES ABOUND In its January opinion, the primary procedural issue centered on the AEDPA and the degree of deference it requires. AEDPA includes a provision that significantly limits a federal court’s ability to review claims previously raised in state court. It provides that when a claim is adjudicated on the merits in state court, the federal court cannot grant habeas relief unless the state court ruling was facially unreasonable or clearly contrary to established federal law as decided by the U.S. Supreme Court. At issue in this case was whether the state court adjudicated the matter on the merits. A 2nd Circuit panel, made up of Judges Richard J. Cardamone, Guido Calabresi and Robert A. Katzmann, held in an opinion by Judge Katzmann that since the 1st Department had not cited any federal cases or even state cases interpreting federal law, it had not adjudicated Washington’s federal claims on the merits as required for AEDPA to apply. Therefore, they held, the pre-1996 standard of review, not the far more restrained one under AEDPA, was operative. Nonetheless, the court observed that the defense attorney had made his point about suggestibility through other witnesses and the error was harmless. The petition was denied. When that decision came out, it caused considerable consternation in the state courts: In the 1st Department alone, about 1,200 criminal appeals are decided annually, and 65 to 75 percent of them involve, in one way or another, a federal question, according to Deputy Clerk David Spokony. The additional responsibility was viewed in the New York judiciary as extremely cumbersome. On Friday, however, the same three-judge panel reconsidered and amended its prior decision. In another opinion by Judge Katzmann, the judges chose not to decide “a difficult issue that has divided the Courts of Appeals.” They found no need to “resolve today the question of whether [AEDPA's] standard of review applies because nothing turns on it here.” The court said that even under a de novo review of the constitutional claim, Judge Buchwald properly denied the application for a writ of habeas corpus. NO PHYSICAL EVIDENCE However, the appeals court said it would be “remiss” if it did not note “several troubling aspects of this trial and the evidence against Mr. Washington.” For instance, it said, there was no physical evidence and very little corroboration. Additionally, the medical evidence raised the possibility that the abuse took place after Washington was incarcerated and the prosecution’s physician “offered largely unconvincing testimony.” Still, the court said the exclusion of the expert testimony did not rise to the level of constitutional error because it would not have created an “otherwise non-existent” reasonable doubt. Consequently, it said, review of the federal claim under either AEDPA or pre-AEDPA standards would render the same result, so there is no point in going further. Judge Calabresi concurred that Washington’s claim falls under a pre-AEDPA analysis and agreed, with misgivings, that the court should not in this case decide which standard of review should apply. He said that in time one of two interpretations of AEDPA will emerge, and he expressed concern over the impact the court’s prior interpretation would have on the state court system. RESPECTING STATE COURTS Under the rubric initially adopted by the 2nd Circuit in its January opinion, AEDPA “would require extremely busy state court judges to figure out what can be very complicated questions of federal law at the pain of having a defendant incorrectly stay in prison should the state court decision of these complex questions turn out to be mistaken,” Calabresi wrote in his concurrence. On the other hand, if the prevailing interpretation is that state courts can avoid the burden of fully articulating their evaluation of federal claims simply by summarily indicating that they have done so, it would present “state courts with a powerful linguistic device by means of which they can command deference concerning the issues they wish to decide, and pass on for de novo review the issues they prefer to avoid, or to treat less fully,” Calabresi said. “In this way, it permits them to exercise that control over their judicial resources which a true respect for state sovereignty requires.” Calabresi observed that the 3rd Circuit in Hameen v. Delaware, 212 F3d 226 (2000), adopted that approach, and indicated that he thinks the 2nd Circuit should do the same — but, “recognizing the costs of such delay,” not just yet. The case re-emerged at the 2nd Circuit after the defendant filed a petition for a rehearing. However, in its decision Friday, the court made no reference to that motion. John R. Cuti, Ilann M. Maazel and Paul Skip Laisure, of Emery Cuti Brinckerhoff & Abady, represent Washington. Assistant Bronx District Attorneys Nancy D. Killian and Joseph N. Ferdenzi represent the prosecution.

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